The ICWA: 35 Years in and We Must Still Fight for Our Children

Thirty-five years ago today, Congress enacted groundbreaking legislation, the impact of which has been arguably more profound than any other piece of federal Indian law in the modern era. On November 8, 1978, the Indian Child Welfare Act, otherwise known as ICWA, became law. While recent national attention has highlighted the law’s role in child custody and adoption proceedings involving tribal citizens, less credit has been granted to ICWA for its wider affirmation of tribal sovereignty as a guaranteed and guiding tenet of federal law.

In ICWA, Congress affirmed tribal authority to protect American Indian children through their own laws, courts, and services. It recognized that tribal courts are of commensurate standing to state courts. ICWA established minimum standards for states to follow in issues of custody and adoptions, giving tribes the right to intervene in state court proceedings as full parties. In an extraordinary acknowledgment of tribal sovereign authority for the time, ICWA provided protection to all tribal citizens no matter where they resided. As such, ICWA served as a catalyst for subsequent legislation that further restored the capacity of tribes to govern themselves and reinforced the era of self-determination for tribal nations.

Yet all of these sovereignty-affirming provisions were not the intended purpose of ICWA. Rather, ICWA was aimed at stopping the inappropriate removal of our children from their parents, extended families, tribes, and culture by non-Indians. In the 1970s, studies documented the horrifying experiences of thousands of American Indian families: one out of every four of our children was being removed from their families. Of these, 85 percent were placed in non-Indian homes. Often such placement meant these children were cut off forever from loving extended families, their culture, community, and traditional way of life. The resulting trauma experienced by American Indian children, families, and entire tribes was as wounding as any assimilationist policy ever inflicted upon our people.

Thirty-five years later, we are still in a fight for our children. Today, with the international adoption industry suffering from tighter restrictions imposed by countries such as Russia and China, pressure to keep up with the demand for children has returned stateside. There is evidence of corrupt adoption practices caused by those whose motive is to prey upon the legitimate desire of childless couples to parent. Tragically, American Indian children are often targeted.

The recent cases of Baby Veronica and Baby Deseray are the most poignant evidence we have that ICWA is still as relevant today as it was at its passage. One only needs to examine who is leading the call for ICWA to be repealed to question the true motivation. Anti-tribal sovereignty groups, anti-Indian gaming interests, a few unscrupulous adoption attorneys and agencies, and a fringe religious group spearhead the opposition to ICWA. Through a smart public relations campaign they have controlled the ICWA narrative for the past two years with misleading, emotionally provocative, and racially biased messages. Too little has been said about the thousands of American Indian children who have been helped by ICWA.

It is time to send a message of our own to those who would target our children for removal for their own gain. To these people, I say stop. Stop putting adoptive parents in jeopardy of losing a child they want desperately. Stop ripping children from the arms of loving relatives. Stop violating the Indian Child Welfare Act for personal gain and profit. As American Indian people, we will bring the darkness of such acts into the light to protect our children. We will continue to advocate that ICWA, the federal law whose protections we are guaranteed as citizens of the United States and of sovereign tribal nations, is enforced. We will hold accountable those who believe they can violate it without consequence.

Thirty-five years ago today, Congress attempted to bring healing to our people by enacting the Indian Child Welfare Act. In doing so, they also acknowledged the legitimacy of tribal sovereignty and supported our self-determination. It is no wonder then, in this era when attacks upon tribal sovereignty abound, that this groundbreaking law that has halted so much profound trauma within Indian communities has been targeted for attack. Nonetheless, Indian Country is prepared to do everything in its power to see that ICWA continues to remain the law of the land. Too much is at stake to do anything less.

Terry L. Cross is the executive director of the National Indian Child Welfare Association and a member of the Seneca Nation.

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